1 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION 3] ESTATE OF ROBERT WONE, 4 Plaintife Civil action No. 5 oy 2008 CA 8315 6 | JOSEPH PRICE, et™al t 7 Defendants oe a 7 we Washington, D.C. 9 Wednesday, December 8, 2010 10 The above-entitled matter came on for hearing 11 | before the Honorable Brooke Hedge, associate judge, in Courtroom Number XX, commencing at 10:44. 12 THIS TRANSCRIPT REPRESENTS THE PRODUCT OF AN 13 OFFICIAL REPORTER, ENGAGED BY THE COURT, WHO HAS PERSONALLY CERTIFIED THAT IT REPRESENTS HER NOTES 4 AND RECORDS OF TESTIMONY AND PROCEEDINGS IN THE CASE AS RECORDED. 1s APPEARANCES : 16 On behalf of the Plaintiff: aT Benjamin Razi, Esquire 18 Stephen Roger, Esquire Patrick Regan, Esquire 19 On behalf of the Defendant: 20 Robert Spagnoletti, Esquire defendant Ward 21 Ralph Spooner, Esquire defendant Ward Bret Buckwalter, Esquire defendant Price 22 Sean Edwards, Esquire defendant Zaborsky Fred Daily, Esquire defendant zaborsky 23 Chip English, Esquire Mediators Intervenors 24 Mahalia M. Davis, RPR 25 | Official Court Reporter (202) 879-102910 uw 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE DEPUTY CLERK: Calling the matter of the Estate of Robert Wone versus Joseph Price, et al Civil Action 8315 2008. Parties, step forward to state your names for the record, please. MR. RAZI: Benjamin Razi for the Plaintiff. MR. SPAGNOLETTI: Good morning, Your Honor, Robert Spagnoletti for’ Mr: Dylan Ward. - MR. EDWARDS: Sean Edwards for’ Mr. Victor Zaborsky. MR. BUCKWALTE! Brett Buckwalter, Your Honor, for Mr. Joseph Price. MR. ENGLISH: Your Honor, Chip English for the Seven Mediator Intervenors. MR. ROGER: Stephen Roger for the complainant, Your Honor. ‘THE COURT: I'm sorry for who? MR. ROGER: For the plaintiffs. THE COURT: All right. Well, make yourself comfortable. I should have told the clerk to go ahead and have you come on and get settled. I understand Mr. Regan is still missing in action in the Line. MR. RAZI: That's right, Your Honor, we expect him momentarily, but we're comfortable just getting started. THE COURT: I thought that it made sense to take10 lu 12 13 14 1s 16 47 18 19 20 2 22 23 24 25 the gag order motion first since that also involve the issue with respect to the intervenors. Mr. Spagnoletti, you really didn't mean to suggest no comments whatsoever, did you? MR. SPAGNOLETTI: Your Honor, actually we've sort of divided up the motions in that particular case. Mr, Edwards will actually be handling this one. - MR. RAZI:~ If I might, Your Horior, “we've divided up the motions too and this one, actually, Mr. Regan was going to handle. I'm happy to do it if the Court really wants to do this one first, that's fine. But given that his coments is so featured in their papers, I think it might be best for him to address it, but I'm happy to. ‘THE COURT: We can wait for him with respect to that. But So I take it in the division of labor that you're MR. RAZI: I'm doing THE COURT: -- the Fifth Amendment issue and the dismissal issue? MR. RAZI: That's right, I'm doing the rest. We had expected to take up the Fifth Amendment issue first but that was THE COURT: I don't want to throw you off. It makes no difference to me. It's all going to get reached one way or the other before we're done today, so...10 a 12 13 14 18 16 17 18 19 20 21 22 23 24 25 MR. RAZI: ‘That's right. And I think the Fifth Amendment issue is brief and simple and it's been briefed extensively for such a narrow simple procedural issue. Let me just try to boil it down to its essence. What we're talking about are civil depositions upon oral examination under Rule 30, the well established procedure under D.C. Superior Court Rule 30 like every other rule of civil procedure for depositions that T'm familiar-with ts that-the counsel that notices the deposition asks the questions and the witness ~ THE COURT: Let me just interrupt you for one moment to get the name for the reporter of who's coming into the well. MR. SPOONER: Thank you, Your Honor. Good morning, Ralph Spooner for Defendant, Dylan Ward. ‘THE COURT: Mr. Spooner, greetings. Go ahead, Mr. Razi. MR. RAZI: To continue, Your Honor, so the procedure as the Court well knows is deposing counsel asks the questions, witnesses answer the questions, they do so orally. That's what's required under the rules. So the question before the Court is, is there a circumstance in this case in which the witness is permitted to sit mutely in response to deposition questions or in the face of deposition questions. And we think the answer is clear10 an 32 13 14 15 16 17 18 19 20 21 22 23 24 25 based on the cases and the rule that we have briefed extensively, that the answer is no. In response Mr. Ward cites Rule 30-D-1, but that's a rule that governs the conduct of counsel. We're not concerned in this motion with conduct of counsel, that's not what's at issue. What's at issue is the testimony that's going to be elicited from the witness. It is not disputed that Rule 30-D-1 by its expressed terms permit counsel to instruct a witness not to answer in order to preserve a privilege, that is not at issue in the motion, undisputed, point conceded. ‘The question is, what does a witness have to do to excuse himself, relieve himself of the obligation to provide substance answers. There is a basis in the constitution for relieving yourself of providing substantive testimony, it's the Fifth Amendment. In order to do that you've got to invoke your Fifth Amendment rights. There were not Fifth Amendment invocations here. If the defendants in this case want to invoke their Fifth Amendment rights, that's their prerogative. We expect based on what we've heard from their lawyers that they may do so in response to one or more questions. If they do so, we're going to seek to the extent they take the Fifth Amendment in response to questions on which we bare the burden of proof and on important issues, we're going to10 1 1 13 1 1s 1s uw 18 a9 20 21 22 23 24 25 seek adverse inferences. We're going to seek to allow the jury to be permitted to infer the answers to those questions adversely to the defendants under the Baxter supreme court case and the long line of precedence thereunder. But in order to do that, we first need to get proper Fifth Amendment invocations if there are going to be any, then we will need guidance from the Court as'to which“issues the defendants are allowed to take the Fifth under and with respect to which they're not. For instance -- and this is sort of getting ahead of ourselves, but I can already foresee an issue as to when it's appropriate THE COURT: I can see the differences. 1 will say as you've -~ I will say I think almost all of you, not Mr. Spooner, but almost all of you have appeared before me. I've read everything and I've read your cases. There is a distinction in terms of asking when did you meet Robert Wone and claiming the Fifth. And then who was your proffer of your security alarm system and claiming the Fifth to, did you own certain type of cutlery? Did you take certain actions with respect to that? They are very different in kind and texture. So there are going to be some very interest Fifth Amendment issues to be resolved and what flows from that. So whoever is on the defense side, is this Mr. Spagnoletti's --10 un 12 13 14 1s 16 17 18 19 20 21 22 23 24 25 MR. SPAGNOLETTI: This would be me, Your Honor. THE COURT: You drew the short straw on this one? MR. SPAGNOLETTI: I did the instructing so I will do the Defendant. THE COURT: It's Mr. Ward's deposition that we're concerned with right now, but obviously it's going to app} to all three. MR. SPAGNOLETTI: Absolutely. We will start-with Mr. Razi's concession as lawyer I have the ability to instruct Mr. Ward not to answer the question, in the words of the rule which we are very careful in how we phrased reserved privilege. THE COURT: Let me just say this so you can address what my concern is. MR. SPAGNOLETTI: Certainly. THE COURT: Let me take the deposition, and it's Page 15 of Mr. Ward on November 10: Question: When did you first meet Robert Wone? Mr. Spagnoletti: I'm instructing Mr. Ward not to answer that question so as to preserve his Fifth Amendment privilege. Mr. Razi Question: Are you going to accept your counsel's instruction? In stead of the witness answering at that point